Filed 1/17/24 P. v. Gomez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B328172
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A023069
v.
THOMAS GOMEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Chet L. Taylor, Judge. Affirmed.
Thomas Gomez, in pro. per.; and Edward H. Schulman,
under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
In 1983, a jury found defendant Thomas Gomez guilty of
first degree murder and found true the special circumstance
allegation that he intentionally murdered the victim for financial
gain. Almost forty years later, Gomez petitioned for resentencing
under Penal Code section 1170.95.1 The trial court denied the
petition, and Gomez appealed. His appellate counsel filed a brief
under People v. Delgadillo (2022) 14 Cal.5th 216. Gomez
subsequently filed a supplemental brief. Essentially, he argues the
court improperly denied his petition based on the appellate opinion in
his direct appeal, the jury should never have been given aiding and
abetting instructions because the People’s primary theory at trial was
that he was the actual shooter, and he was not the actual shooter
because the jury found that he did not personally use a firearm during
the commission of the murder. We affirm.
BACKGROUND
According to the opinion in Gomez’s direct appeal, People v.
Gomez (Aug. 5, 1985, 2d Crim. No. 44338) [nonpub. opn.]
(Gomez), Joan Ponce hired Gomez and David Ramos to kill her
husband, Febrilium Ponce, for $10,000.2 He was killed in March
1981 as a result of a gunshot to his head while sitting in his
truck. After the murder, Joan Ponce gave Gomez a $2,000 down
1 Undesignated statutory references are to the Penal Code. Section
1170.95 was renumbered to section 1172.6 without substantive change.
(Stats. 2022, ch. 58, § 10.) We hereafter cite to section 1172.6 for ease
of reference.
2 We granted his request for judicial notice of Gomez on September 6,
2023.
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payment and Gomez told his girlfriend that he received the
money for killing Joan Ponce’s husband.
In an information filed in August 1981, Gomez and Joan
Ponce were charged with one count of murder under section 187.
The information alleged the special circumstance allegation that
they intentionally murdered Febrilium Ponce for financial gain
under section 190.2, subdivision (a)(1). It also alleged that Gomez
personally used a firearm during the commission of the murder
under sections 12022.5 and 1203.06. Joan Ponce pleaded guilty to
first degree murder; Ramos, who was charged in a separate
information, was convicted of first degree murder. (Gomez, supra,
2d Crim. No. 44338 at p. 2, fn. 1.)
In 1983, a jury found Gomez guilty of first degree murder
as charged in the information. The jury also found true the
special circumstance allegation that he intentionally murdered
Febrilium Ponce for financial gain. The jury, however, found not
true the allegation that Gomez personally used a firearm during
the commission of the murder. Gomez was sentenced to life
imprisonment without the possibility of parole.
On January 26, 2022, Gomez filed a form petition for
resentencing under section 1172.6. The court appointed counsel to
represent him. The People opposed the petition on the ground
that Gomez was ineligible for resentencing because he intended to
kill the victim. With their opposition, the People submitted the jury
instructions, verdicts, and the information. Although he was
represented by counsel, Gomez filed his own handwritten reply.
Later, Gomez, through his appointed counsel, filed a reply which
did not advance any legal arguments other than attaching a copy
of Gomez’s handwritten reply.
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The court conducted a hearing on the petition on January 12,
2023. Gomez’s counsel stated that he and Gomez had a difference of
opinion and asked the court to allow Gomez to address the court
directly. Gomez then told the court that the jury should never have
been given the aiding and abetting instructions because the People’s
primary theory at trial was that he was the “trigger man.” After
hearing from Gomez and the attorneys, the court stated that it had
reviewed the appellate opinion and the jury instructions. The court
also noted that the evidence presented at trial, and which was not
disputed by Gomez in connection with the petition, established that
Gomez agreed to kill Joan Ponce’s husband with Ramos’s assistance
and that Gomez received a down payment of $2,000 for the murder.
After acknowledging the not true finding on the personal use of the
firearm allegation, the court found that Gomez was the actual killer
or aided and abetted Joan Ponce in murdering her husband and
denied the petition.
This timely appeal followed. Gomez’s appellate counsel filed an
opening brief that raised no issues and asked this court to conduct
appellate review under Delgadillo. Gomez filed a supplemental
brief that argues the court improperly denied his petition based on
the appellate opinion in his direct appeal, the jury should never have
been given aiding and abetting instructions because the People’s
primary theory at trial was that he was the actual shooter, and he was
not the actual shooter because the jury found that he did not
personally use a firearm during the commission of the murder.
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DISCUSSION
As amended by Senate Bill No. 775, section 1172.6,
subdivision (a) provides: “A person convicted of felony murder or
murder under the natural and probable consequences doctrine or
other theory under which malice is imputed to a person based
solely on that person’s participation in a crime, attempted
murder under the natural and probable consequences doctrine, or
manslaughter may file a petition with the court that sentenced
the petitioner to have the petitioner’s murder, attempted murder,
or manslaughter conviction vacated and to be resentenced on any
remaining counts.”
An offender must file a petition in the sentencing court
averring that: “(1) A complaint, information, or indictment was
filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder, murder under the
natural and probable consequences doctrine or other theory
under which malice is imputed to a person based solely on that
person’s participation in a crime, or attempted murder under the
natural and probable consequences doctrine[;] [¶] (2) The
petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a
trial at which the petitioner could have been convicted of murder
or attempted murder[;] [¶] [and] (3) The petitioner could not
presently be convicted of murder or attempted murder because of
changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1172.6, subd. (a)(1)–(3); see also id., subd. (b)(1)(A).)
Additionally, the petition shall state “[w]hether the petitioner
requests the appointment of counsel.” (Id., subd. (b)(1)(C).)
“Upon receiving a petition in which the information
required by this subdivision is set forth or a petition where any
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missing information can readily be ascertained by the court, if
the petitioner has requested counsel, the court shall appoint
counsel to represent the petitioner.” (§ 1172.6, subd. (b)(3).) The
prosecutor shall file a response within 60 days of the service of
the petition, and the petitioner may file a reply within 30 days of
the response. (Id., subd. (c).) When briefing has been completed,
“the court shall hold a hearing to determine whether the
petitioner has made a prima facie case for relief.” (Ibid.) “If the
petitioner makes a prima facie showing that the petitioner is
entitled to relief, the court shall issue an order to show cause.”
(Ibid.)
In determining whether a petitioner has made a prima
facie showing of entitlement to relief, the trial court’s inquiry will
necessarily be informed by the record of conviction, which will
facilitate the court in distinguishing “petitions with potential
merit from those that are clearly meritless.” (People v. Lewis
(2021) 11 Cal.5th 952, 971 (Lewis).) The court is prohibited from
engaging in “ ‘factfinding involving the weighing of the evidence
or the exercise of discretion.’ ” (Id. at p. 972.) Rather, the court
must “ ‘ “take[ ] [the] petitioner’s factual allegations as true” ’ ”
and make a “ ‘ “preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
allegations were proved.” ’ ” (Id. at p. 971.) Summary denial of
the petition is appropriate where the record of conviction
establishes the petitioner is ineligible for resentencing as a
matter of law. (People v. Estrada (2022) 77 Cal.App.5th 941, 945;
People v. Coley (2022) 77 Cal.App.5th 539, 548.)
We independently review the trial court’s determination
that the petitioner failed to make a prima facie showing for relief.
(People v. Harden (2022) 81 Cal.App.5th 45, 52; People v. Eynon
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(2021) 68 Cal.App.5th 967, 975.) A denial at this stage is
appropriate if the record of conviction demonstrates that the
petitioner is ineligible for relief as a matter of law. (Lewis, supra,
11 Cal.5th at p. 960.)
Our independent review of the record has revealed no
arguable issue that warrants further briefing or a basis for
reversing the order. First, and as acknowledged by his appellate
counsel, although the court stated it had read Gomez, there is no
indication in the record that the court improperly relied on the
opinion before denying the petition. Second, we reject Gomez’s
contention that the jury should never have been given certain
instructions in his trial. In his direct appeal, Gomez had the right
to raise any issues relating to his conviction, including how the
jury was instructed. Indeed, in Gomez, the appellate court
expressly rejected his argument that the trial court erred by
instructing the jury on a theory of aiding and abetting.
Finally, we reject Gomez’s suggestion that the court
disregarded the jury’s not true finding on the allegation that, in
the commission of the murder, he personally used a firearm. A
finding that he did not personally use a firearm does not
necessarily mean that he did not aid and abet the killing. Aiding
and abetting murder is not limited to providing supporting fire.
As the instruction at trial stated, a defendant can aid and abet a
crime if, “with knowledge of the unlawful purpose of the
perpetrator of the crime, he aids, promotes, encourages or
instigates by act or advice the commission of such crime with the
same intent as the perpetrator or with the intent to facilitate the
commission of such crime.” As the Supreme Court has held, “ ‘To
be an abettor the accused must have instigated or advised the
commission of the crime or been present for the purpose of
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assisting in its commission.’ ” (People v. Durham (1969) 70 Cal.2d
171, 181, italics omitted.)
In sum, none of Gomez’s arguments in his supplemental
brief show that his murder conviction cannot be sustained under
current law or support reversal of the order on appeal.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
ADAMS, J.
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